Transcript
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JACK LOWE and DENNIS
REYNOLDS,
Plaintiffs,
v.
ATLAS LOGISTICS GROUP RETAIL
SERVICES (ATLANTA), LLC,
Defendant.
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CIVIL ACTION NO.
1:13-CV-2425-AT
ORDER
Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates
warehouses for the storage of products sold at a variety of grocery stores. So one
could imagine Atlas’s frustration when a mystery employee began habitually
defecating in one of its warehouses.1
To solve the mystery of the devious
defecator, Atlas requested some of its employees, including Jack Lowe and
Dennis Reynolds, to submit to a cheek swab. The cheek cell samples were then
sent to a lab where a technician compared the cheek cell DNA to DNA from the
offending fecal matter. Lowe and Dennis were not a match. With the culprit
apparently still on the loose, Lowe and Dennis filed suit under the Genetic
Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which
Apparently, this problem is not as rare as one might imagine. See Ashtari, EPA Employees
Asked To Stop Pooping In The Hallway, Huffington Post (June 26, 2014 10:59 AM).
1
generally prohibits employers from requesting genetic information from its
employees.
The matter is before the Court on the parties’ Cross-Motions for Summary
Judgment [Docs. 44, 45]. The legal question before the Court is whether the
information requested and obtained by Atlas was “genetic information” covered
by GINA. For the reasons that follow, the Court concludes that it is. Thus, the
Court GRANTS Plaintiffs’ Motion for Partial Summary Judgment and DENIES
Defendant’s Motion for Summary Judgment.
I.
LEGAL STANDARD
The Court may grant summary judgment only if the record shows “that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual issue is genuine if
there is sufficient evidence for a reasonable jury to return a verdict in favor of the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual issue is material if resolving the factual issue might change the
suit’s outcome under the governing law. Id. The motion should be granted only
if no rational fact finder could return a verdict in favor of the non-moving party.
Id. at 249.
When ruling on the motion, the Court must view all the evidence in the
record in the light most favorable to the non-moving party and resolve all factual
disputes in the non-moving party’s favor. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). The moving party need not positively
2
disprove the opponent’s case; rather, the moving party must establish the lack of
evidentiary support for the non-moving party’s position. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the moving party meets this initial burden,
in order to survive summary judgment, the non-moving party must then present
competent evidence beyond the pleadings to show that there is a genuine issue
for trial. Id. at 324-26. The essential question is “whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 25152.
The standard of review for cross-motions for summary judgment does not
differ from the standard applied when only one party files a motion, but simply
requires a determination of whether either of the parties deserves judgment as a
matter of law on the facts that are not disputed. Am. Bankers Ins. Group v.
United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court must consider
each motion on its own merits, resolving all reasonable inferences against the
party whose motion is under consideration.
Id.
The Eleventh Circuit has
explained that “[c]ross-motions for summary judgment will not, in themselves,
warrant the court in granting summary judgment unless one of the parties is
entitled to judgment as a matter of law on facts that are not genuinely disputed.”
United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984). Cross-motions
may, however, be probative of the absence of a factual dispute where they reflect
3
general agreement by the parties as to the controlling legal theories and material
facts. Id. at 1555-56.
II.
FACTUAL BACKGROUND
Atlas provides long-haul transportation and storage services for the
grocery industry. (Pl.’s Resp. Def.’s Statement of Undisputed Material Facts No.
1 (“Pl’s Resp. SMF”), Doc. 53-1.)2
As part of its services, Atlas maintains
warehouse facilities to store grocery items which are then distributed to grocery
retailers.
(Id. No. 2.)
Beginning in 2012, an unknown number of Atlas
employees began defecating in Atlas’s Bouldercrest Warehouse. (Id. No. 6.) The
defecations occurred numerous times and necessitated the destruction of grocery
products on at least one occasion. (Id. No. 6-7.)
Atlas attempted to remedy the defecation issue by asking its Loss
Prevention Manager, Don Hill, to conduct an investigation. (Id. No. 8.) Mr. Hill
began his investigation by comparing employee work schedules to the timing and
location of the defecation episodes in order to create a list of employees who may
have been responsible. (Id. No. 8-10.) Plaintiffs Jack Lowe and Dennis Reynolds
were two of the employees Mr. Hill identified. (Pl.’s Statement of Undisputed
Material Facts (“SMF”) Ex. D (“Investigative Narrative”) at 4, Doc. 44-6.)
Once Mr. Hill created the list of potential suspects, he hired Speckin
Forensic Labratories (“Speckin Labs”) to assist in the investigation. (Pl’s Resp.
Many of the material facts are not in dispute. The Court cites Plaintiffs’ Response to
Defendant’s Statement of Undisputed Material Facts to extent Plaintiff admits the fact asserted.
Otherwise, the Court cites to evidence in the record.
2
4
SMF No. 12.). Hill retained Speckin Labs to perform a comparison of buccal
swab samples3 to the fecal matter collected in the Warehouse. (Id. No. 13.) Atlas
requested that the results of the comparison be transmitted to Atlas.
(See
Investigative Narrative at 4-6.)
In order to perform the comparison, Speckin Labs suggested using Short
Tandem Repeat analysis (“STR analysis”). (Pl’s Resp. SMF No. 15.) STR analysis
compares samples by analyzing “genetic spacers” at various sites. (Id. No. 16.)
“Genetic spacers” are the space between an individual’s genes and vary drastically
from person to person. (Id. No. 17.) STR analysis can be used to compare DNA
from one sample to another for identification purposes. (Id. No. 20.) STR
analysis cannot, however, determine an individual’s propensity for disease or
disorder. (Id. No. 19.)
Speckin Labs sent Dr. Julie Howestine to the Warehouse in October 2012
to collect buccal swab samples from Lowe and Reynolds. (Id. No. 21.) Lowe and
Reynolds provided4 samples to Dr. Howestine, who then sent the samples to
GenQuest DNA Analysis Laboratory (“GenQuest”) via an intermediary, Semen
and Sperm Detection, Inc. (Id. No. 23-25, 36.) Dr. Howestine requested that
GenQuest use the PowerPlex 21 System (“PowerPlex 21”) to perform the STR
analysis of Lowe’s and Reynolds’s buccal swab samples.
(Id. No. 35.)
The
3 Buccal swab samples are DNA samples obtained by rubbing a cotton swab on the inside of the
cheek. (Deposition of Dr. Julie Howenstine (“Howenstine Deposition”) at 15-16, Doc. 45-10.)
4 The parties dispute whether Lowe and Reynolds provided the sample voluntarily or were
coerced into providing the samples. This dispute, however, is not material. The Court’s decision
turns on whether Atlas requested genetic information, not whether Lowe and Reynolds
voluntarily gave a DNA sample.
5
PowerPlex 21 measures the length of spaces between two genes at twenty
chromosome spaces to compare various DNA samples.
(Id. No. 38.)
The
PowerPlex 21 produces an electropherogram, which graphs the PowerPlex 21’s
analysis of DNA samples. (See id. No. 42.)
After performing the PowerPlex 21 analysis on Lowe’s and Reynolds’s DNA
samples, GenQuest sent Dr. Howenstine the electropherogram with the
PowerPlex 21 analysis’ findings. (Id. No. 42.) Using the data provided in the
electropherogram, Dr. Howenstine compared the DNA samples of Lowe and
Reynolds to the DNA of the fecal matter and determined that neither Lowe nor
Reynolds were the culprits. (Id. No. 42-45.) Dr. Howenstine documented this
mismatch in a letter to Mr. Hill on October 22, 2012. (Id. No. 46.)
On March 27, 2013, Lowe and Reynolds filed charges of discrimination
with the Equal Employment Opportunity Commission (“EEOC”). The Plaintiffs
alleged that Atlas violated the Genetic Information Nondiscrimination Act, 42
U.S.C. § 2000ff, et seq. (“GINA”) because Atlas illegally requested and required
them to provide their genetic information and illegally disclosed their genetic
information. The EEOC dismissed Lowe’s and Reynolds’s charges against Atlas
on April 24, 2013. Specifically, the Dismissal and Notice of Rights letters stated:
The EEOC issues the following determination: Based upon its
investigation, the EEOC is unable to conclude that the information
obtained establishes violations of the statutes. This does not certify
that the respondent is in compliance with the statutes. No finding is
made as to any other issues that might be construed as having been
raised in this charge.
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(Dismissal and Notice of Rights of Dennis Reynolds (“Reynolds Notice”), Doc.
45-18; Dismissal and Notice of Rights of Jack Lowe (“Lowe Notice”), Doc. 45-19.)
The letters entitled Lowe and Reynolds to file suit within 90 days of April 24,
2013. On July 22, 2013, Lowe and Reynolds timely filed this action.
III.
ANALYSIS
According to Plaintiffs Jack Lowe and Dennis Reynolds, the undisputed
facts show that Atlas requested information about Speckin Labs’s comparison of
Lowe’s and Reynolds’s DNA to the fecal sample. These facts, Plaintiffs argue,
demonstrate that Atlas violated 42 U.S.C. § 2000ff-1(b), which makes it “an
unlawful employment practice for an employer to request, require, or purchase
genetic information with respect to an employee.”5 Plaintiffs therefore move for
Partial Summary Judgment as to Atlas’s liability under this section of GINA.
Atlas responds and argues in its Motion for Summary Judgment that the
information the company requested concerning Lowe’s and Reynolds’s DNA
analysis does not constitute “genetic information” as defined in GINA. According
to Defendant’s interpretation of GINA, “genetic information” refers only to
information related to an individual’s propensity for disease. For this reason,
Defendant moves for summary judgment as to all of Plaintiffs’ claims. The issue
before the Court, therefore, is whether the term “genetic information” as used in
GINA encompasses the information Atlas requested in this case.
Plaintiffs state in their Motion for Partial Summary Judgment that they withdraw their claims
as to disclosure of Lowe’s and Reynolds’s DNA under 42 U.S.C. § 2000ff-5(b).
5
7
“As with any question of statutory interpretation, [the Court] begin[s] by
examining the text of the statute to determine whether its meaning is clear.”
Lindley v. F.D.I.C., 733 F.3d 1055 (11th Cir. 2013) (citing Harry v. Marchant, 291
F.3d 767, 770 (11th Cir. 2002)). The Court’s analysis stops at a review of the text
of GINA “if the statutory language is unambiguous and the statutory scheme is
coherent and consistent.” Med. Transp. Mgmt. Corp. v. Comm’r of IRS, 506
F.3d 1364, 1368 (11th Cir. 2007)). If the statutory language may be reasonably
interpreted in more than one way, however, the statutory language is deemed
ambiguous and additional tools of statutory interpretation should be used. Id.
Only “in rare and exceptional circumstances” may a court “decline to follow the
plain
meaning
of
a
statute
because
overwhelming
extrinsic
evidence
demonstrates a legislative intent contrary to the text’s plain meaning.” Boca
Ciega Hotel, Inc. v. Bouchard Transp. Co., Inc., 51 F.3d 235, 238 (11th Cir. 1995).
As discussed below, the Court determines that the unambiguous language
of GINA covers Atlas’s requests for Lowe’s and Reynolds’s genetic information
and thus compels judgment in favor of Lowe and Reynolds. This case is not one
of the rare instances where overwhelming extrinsic evidence demonstrates a
legislative intent contrary to the text’s plain meaning. For these reasons, the
Court grants Plaintiffs’ Motion for Partial Summary Judgment and denies
Defendant’s Motion for Summary Judgment.
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A.
The Unambiguous Statutory Language of GINA
The Court begins its analysis with the language of GINA. GINA makes it
“an unlawful employment practice for an employer to request, require, or
purchase genetic information with respect to an employee.” 42 U.S.C. § 2000ff1(b). Section 2000ff-1(b) lists six exceptions to this general prohibition, but Atlas
admits that none of the statutory exceptions apply here. (Def. Resp. to Pls.’s First
Set of Reqs. for Admis. 5, Doc. 44-3.) The parties also agree that Atlas is an
“employer” and Lowe and Reynolds are “employees” as defined by GINA. (Def.’s
Resp. SMF at 1-2,) 42 U.S.C. § 2000ff(2)(A)-(B). The parties’ disagreement
centers on a single phrase in Section 2000ff-1(b): “genetic information.”
GINA defines genetic information as “with respect to any individual,
information about (i) such individual’s genetic tests, (ii) the genetic tests of
family members of such individual, and (iii) the manifestation of a disease or
disorder in family members of such individual.” 42 U.S.C. § 2000ff(4). Parts (ii)
and (iii) do not apply to Lowe and Reynolds’s claims, as the PowerPlex 21
analysis was not performed on DNA of their family members. Therefore, the
DNA analysis would only qualify as “genetic information” under GINA if the
analysis qualifies as a “genetic test.”
“Genetic test” is also defined in GINA. The statute defines “genetic test” as
“an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that
detects genotypes, mutations, or chromosomal changes.” 42 U.S.C. § 2000ff(7).
9
The extent of GINA’s guidance ends with its definition of “genetic test:” none of
the words included in 42 U.S.C. § 2000ff(7) are further defined in GINA.
If all the Court considers is the language of GINA, the undisputed evidence
in the record establishes that the DNA analysis at issue here clearly falls within
the definition of “genetic test.” The parties agree that Dr. Howenstine conducted
an “analysis” of Lowe’s and Reynolds’s DNA. (Def.’s Resp. SMF at 10.) And the
undisputed evidence in the record shows that this analysis at a minimum detects
genotypes and mutations.6 Because the parties agree that Atlas requested a
comparison of Lowe’s and Reynolds’s DNA to the fecal DNA found in the
warehouse, Atlas’s request and course of action appear to constitute a violation of
42 U.S.C. 2000ff-1(b)’s prohibition against requesting genetic information from
employees.
Defendant argues that this straightforward but broad interpretation of
GINA is erroneous. Defendant urges the Court to interpret the “genetic test”
language of GINA to exclude analyses of DNA, RNA, chromosomes, proteins, or
metabolites if such analyses do not reveal an individual’s propensity for disease.
This proposed definition of “genetic tests” — a definition which limits genetic
Atlas seems to dispute whether the analysis “detects genotypes [and] mutations.” However,
Dr. Howenstine, Defendant’s own expert, acknowledged that the analysis performed on Lowe’s
and Reynolds’s DNA detects both mutations and genotypes. (Howenstine Dep. 85:24-86:11,
88:5-8; Howenstine Ex. Report 2, Doc. 45-11 (acknowledging that the PowerPlex21 test detects
genotypes, “which consists entirely of DNA that does not manifest itself by producing any RNA
or protein as a gene does”) (emphasis added); see also Expert Report of Dr. Barbara Llewellyn at
2, Doc. 44-11 (“[T]he DNA analysis . . . included typing genotypes at 21 different locations (loci)
on the DNA molecule for each reference sample . . .” (emphasis added)).) Likewise, as Atlas
acknowledges, “Howenstine testified that PowerPlex 21 has the potential to detect one mutation
regarding the number of fragments in a given location . . .” (Def.’s Resp. SMF at 13 (emphasis
added).) Thus, if this mutation is present, the PowerPlex 21 analysis detects it.
6
10
tests to those related to one’s propensity for disease — renders other language in
GINA superfluous, and should thus be rejected. See United States v. Alabama,
778 F.3d 926 (11th Cir. 2015) (“[W]hen [courts] engage in statutory
interpretation, ‘[i]t is our duty to give effect, if possible, to every clause and word
of a clause.’”) (citing United States v. Menasche, 348 U.S. 528, 538-39 (1955)).
Section 2000ff-1(b) makes it unlawful to request, require, or purchase
genetic information, except in six contexts. Section 1(b)(6), in turn, expressly
allows employers to request, require, or purchase some genetic information
which has nothing to do with the propensity for disease. 42 U.S.C. § 2000ff1(b)(6). Specifically, an employer is not liable under GINA where it conducts a
“DNA analysis . . . for purposes of human remains identification, and requests or
requires genetic information of such employer’s employees, but only to the extent
that such genetic information is used for analysis of DNA identification markers
for quality control to detect sample contamination.” 42 U.S.C. § 2000ff-1(b)(6).
This exception would be unnecessary if Atlas’s construction of GINA were
correct, because under Atlas’s construction, the term “genetic information”
already excludes DNA analyses for purposes of human remains identification — a
type of analysis unrelated to testing for disease propensity.7 Thus, the exception
The EEOC has articulated a similar point. In an Informal Discussion Letter, the EEOC
responded to a question asking whether this sixth exception of GINA applies to manufacturers
of supplies used in forensic DNA analysis. See EEOC Informal Discussion Letter (June 6, 2012),
http://www.eeoc.gov/eeoc/foia/letters/2012/gina forensic lab exception.html. The employer
who asked for the EEOC’s approval sought to require employees to provide genetic information
without violating GINA. Id. After consultation with experts at the National Human Genome
Research Institute, the EEOC wrote that “forensic DNA analysis constitutes a genetic test.” Id.
The EEOC explained that “the fact that Congress included an exception specifically permitting
7
11
in § 2000ff-1(b)(6) weighs against Atlas’s interpretation.
See also Arcia v.
Florida Secretary of State, 772 F.3d 1335, 1345 (11th Cir. 2014) (“Where
Congress explicitly enumerates certain exceptions to a general prohibition,
additional exceptions are not to be implied, in the absence of evidence of a
contrary legislative intent.”) (citing Andrus v. Glover Constr. Co., 446 U.S. 608,
616–617 (1980)).
Atlas’s reliance on GINA’s legislative history to argue otherwise is
unpersuasive. According to Atlas, this human remains identification exception
was created to address a concern raised by the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”). (Def.’s Reply at 7-8, Doc. 57 (citing H.R. Rep. No. 110-28, pt.
3, *68 (2007).) It is true that during the drafting of GINA, ATF expressed its
concern that its DNA profile index, developed for forensic purposes, seemed to
violate GINA as drafted.8 Id. And Congress apparently carved out the narrow
exception for law enforcement agencies in response to ATF’s concerns. But Atlas
does not explain why such an exception would be necessary if, as Atlas would
forensic DNA analysis suggests that it constitutes genetic testing that would be prohibited in the
absence of the exception.” Id. The EEOC ultimately declined taking a position on the question,
stating that the question “was not raised during the public comment period . . . nor is there any
legislative history to indicate that it was contemplated.” Id.
8 ATF explained that DNA technology has advanced to a stage where DNA profiles can be
obtained by handling objects or leaving a fingerprint. H.R. Rep. No. 110-28, pt. 3, *68 (2007).
Many forensic DNA labs maintain an employee DNA index and compare all DNA profiles
developed from evidence to the employee DNA index. Id. This comparison achieves two ends.
First, the comparison prevents false exclusions by identifying and eliminating DNA profiles
which belong to an employee instead of a true perpetrator. Id. Second, if a DNA profile
developed from evidence is not identified, that profile is then uploaded to the Combined DNA
Index System (“CODIS”). Id. By identifying the DNA profile as one which belongs to a lab
employee, the employee DNA index prevents both inadvertent uploads and subsequent linking
of unlinked crimes. Id. By maintaining the staff index, ATF prevents both false exclusions
accidentally created by an investigator or laboratory personnel and ATF employees’ DNA
information from being uploaded to the Combined DNA Index System. Id.
12
have it, the definition of “genetic information” already excludes the type of
information in ATF’s index — genetic information unrelated to one’s propensity
for disease.9
The Court therefore rejects Atlas’s interpretation, which is
inconsistent with the plain terms of the statute.
B.
Evidence of Legislative Intent
Despite the plain, unambiguous language of GINA providing a broad
definition of “genetic information,” which covers the information Atlas requested
in this case, Atlas urges the Court to adopt its narrow definition. It is true that “in
rare and exceptional circumstances [a court] may decline to follow the plain
meaning of a statute because overwhelming extrinsic evidence demonstrates a
legislative intent contrary to the text’s plain meaning.” Boca Ciega Hotel, Inc., 51
F.3d at 238. This is not such an exceptional case.
Atlas first relies on the Congressional Findings, included in GINA, to urge
the Court to adopt its definition of “genetic information,” but the Congressional
Findings lend Atlas only limited support. The Congressional Findings do indeed
express a concern that advances in genetic testing, which “can allow individuals
to take steps to reduce the likelihood that they will contract a particular
disorder,” also “give rise to the potential misuse of genetic information to
discriminate in health insurance and employment.” 42 U.S.C. § 2000ff note.
Professor David H. Kaye suggests that this law enforcement exception may still have been
necessary to the extent an analysis for purposes of human remains identification may also “have
(or will turn out to have) medical diagnostic or predictive value.” David H. Kaye, Gina’s
Genotypes,
108
Mich.
L.
Rev.
First
Impressions
51,
55-56
(2015),
http://repository.law.umich.edu/mlr_fi/vol108/iss1/5. Perhaps. But Atlas offers no legislative
history to support that this was in fact Congress’s concern.
9
13
And as Atlas highlights, the Findings include historical examples of
discrimination on the basis of genetic testing that reveals the existence of or
propensity for disease, such as state-sanctioned sterilization of individuals with
genetic defects and state-sanctioned sickle cell anemia testing. Id. But Atlas
ignores the Findings’ more general pronouncement of GINA’s purpose: to
“establish[] a national and uniform basic standard” of unacceptable use of genetic
information in health insurance and employment, in order “to fully protect the
public from discrimination and allay their concerns about the potential for
discrimination, thereby allowing individuals to take advantage of genetic testing,
technologies, research, and new therapies.”
Id.
It is not unreasonable for
Congress to achieve this “national and uniform basic standard” of full protection
by broadly prohibiting employers from requesting, requiring, or purchasing
genetic information of their employees, except under limited circumstances. On
the contrary, GINA’s statutory regime, which errs on the side of prohibiting
employer-mandated or requested genetic testing, seems fully consistent with
these Congressional Findings.
Atlas next cherry-picks statements made during the legislative process to
support its proposition that the term “genetic test” was meant to encompass a
narrower set of tests which detect one’s propensity for disease. For example,
Representative Louise Slaughter, sponsor of the original GINA bill in the House
of Representatives identified examples of genetic tests including tests conducted
on Hasidic Jewish children to determine if they had diseases, tests that could be
14
“life-saving,” and tests that determine whether one has sickle cell anemia. 110
Cong. Rec. E120 (daily ed. Jan. 16, 2007) (remarks of Rep. Slaughter). Atlas
notes that these examples involve one’s propensity to develop disease.
But
Representative Slaughter did not indicate that these examples were exhaustive.
In any case, one legislator’s list of examples — offered a year and half before the
bill’s final passage, and before numerous debates and amendments to the statute
— provides little insight into the overall congressional purpose of the Act.
Atlas then erroneously cites the view of a handful of legislators that the
intent of GINA was to be limited to combating discrimination based on one’s
propensity for disease. (Def.’s Reply at 8-9, Doc. 57.) As Atlas points out, this
group of eleven legislators “believe[d] that the basic intent of the authors [of the
bill] [was] to regulate a predictive assessment concerning an individual’s
propensity to get an inheritable genetic disease or disorder based on the
occurrence of an inheritable genetic disease or disorder in the family member.”
H.R. Rep. No. 110-28, pt. 3, at 70 (Mar. 29, 2007). But the legislators recognized
that, as written, GINA’s scope was much broader. They referenced the Director
of the Human Genome Project Dr. Francis Collins’s testimony that “the GINA
reference to detecting a genotype covered, among other things, . . . forensic DNA
identification tests, tissue typing for organ donation[,] and paternity tests,” all
tests that do not indicate one’s propensity for disease. Id. at 71 (citing Collins’s
testimony).
This small group of legislators expressed concern about GINA’s
“failure to limit [the] definition [of genetic information] to genetic markers for
15
genetic disease.” Id. They therefore urged a narrowing of the scope of the
statute. Despite these concerns, Congress stuck with the broad definition of
“genetic tests” in the final version of the bill.10 Accordingly, the view of this small
group of legislators appears to have been rejected. See also, e.g., Steinle v.
Boeing Co., 785 F. Supp. 1434, 1439 (D. Kan. 1992) (“Courts should carefully
scrutinize whether the legislative history evidences Congress’ intent or is merely
the expression of one person’s personal viewpoint injected into the record in an
effort to sway the courts in a manner that person was unable to persuade the
legislature.”).
Moreover, to address concerns about GINA’s broad definition of “genetic
information,” the FBI suggested a narrow definition of genetic test limited to “the
analysis of human DNA, RNA, chromosomes, proteins, or certain metabolites in
order to detect disease-related genotypes or related phenotypes.” Id. at 68.11
With this narrow definition, the FBI recommended striking the exceptions. Id. at
68. The FBI’s proposal, however, did not make its way into the final bill.
10 In fact, Atlas concedes that Congress left “GINA’s broad definition in place.” (Def.’s Reply at
9, Doc. 57.) Atlas argues, however, that Congress “delegate[d] the difficult task of interpreting
and enforcing the statute to someone with more expertise,” i.e. the EEOC. (Id.) And according
to Atlas, the EEOC took the initiative to narrow the scope of the statute by providing examples
that do not extend beyond genetic tests for propensity for disease. The Court addresses and
rejects the assertion that the EEOC has limited the definition of genetic information below in
Part III.C.
11 The FBI’s suggested definition of “genetic test” in its entirety is as follows: “The term ‘genetic
test’ means – the analysis of human DNA, RNA, chromosomes, proteins, or certain metabolites
in order to detect disease-related genotypes or related phenotypes. The term does not apply to
any such testing which is conducted for the exclusive purposes of identification, where no
information regarding the sample is to be provided to any entity for the purposes of determining
any health related information regarding either the individual or members of the individual’s
family.” H.R. Rep. 110-28, pt. 3, at *68.
16
The Congressional Findings and legislative history Atlas relies upon are not
remotely sufficient to justify departing from the plain meaning of the statute’s
text. Accordingly, the Court applies the plain terms of the statute to find that,
based on this record, Atlas violated GINA when it requested the results of the
PowerPlex 21 test.
C.
EEOC Regulation
As the Court concludes that the statute unambiguously covers the conduct
at issue in this case, its analysis is complete. Nonetheless, because so few courts
have had the occasion to address GINA, the Court briefly addresses Atlas’s
argument that an EEOC regulation, promulgated under GINA in accordance with
42 U.S.C. § 2000ff-10, weighs in favor its interpretation.
Atlas argues,
“Assuming, arguendo, that GINA’s definition of ‘genetic information’ or ‘genetic
tests’ is ambiguous, the Court should defer to the EEOC’s interpretation of GINA
as set forth in its regulations, which supports an order for summary judgment in
Defendant’s favor.” (Def.’s Br. Supp. Mot. Summ. J. at 14-15, Doc. 45-1 (citing
Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, (1984).)
Although the EEOC’s regulation define “genetic test” with exactly the same
language as the statute,12 the regulation provide a list of examples, and Atlas
attempts to capitalize on this list to support its argument. According to the
regulation, “[g]enetic tests include, but are not limited to” the following:
Compare 42 U.S.C. § 2000ff(7) (defining genetic test as “an analysis of human DNA, RNA,
chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal
changes”), with 29 C.F.R. 1635.3(f)(1)-(2) (2010) (same).
12
17
(i) A test to determine whether someone has the
BRCA1 or BRCA2 variant evidencing a
predisposition to breast cancer, a test to
determine whether someone has a genetic variant
associated with hereditary nonpolyposis colon
cancer, and a test for a genetic variant for
Huntington's Disease;
(ii) Carrier screening for adults using genetic
analysis to determine the risk of conditions such
as cystic fibrosis, sickle cell anemia, spinal
muscular atrophy, or fragile X syndrome in future
offspring;
(iii) Amniocentesis and other evaluations used to
determine the presence of genetic abnormalities
in a fetus during pregnancy;
(iv) Newborn screening analysis that uses DNA,
RNA, protein, or metabolite analysis to detect or
indicate genotypes, mutations, or chromosomal
changes, such as a test for PKU performed so that
treatment can begin before a disease manifests;
(v) Preimplantation genetic diagnosis performed
on embryos created using invitro fertilization;
(vi) Pharmacogenetic tests that detect genotypes,
mutations, or chromosomal changes that indicate
how an individual will react to a drug or a
particular dosage of a drug;
(vii) DNA testing to detect genetic markers that
are associated with information about ancestry;
and
(viii) DNA testing that reveals
relationships, such as paternity.
family
29 C.F.R. § 1635.3(f)(1)-(2) (2010). Atlas correctly points out that tests like the
PowerPlex 21 analysis are absent from the list of “genetic tests” identified by the
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EEOC.
Thus, according to Atlas, the PowerPlex21 is not the type of test
contemplated by the term “genetic test.”
The Court rejects Atlas’s argument for three reasons. First, as noted in the
regulation, this list is not meant to be exhaustive. Thus, PowerPlex 21’s absence
from the list is not, in itself, instructive. Second, two of the examples in the
EEOC Regulation, “DNA testing to detect genetic markers that are associated
with information about ancestry” and “DNA testing that reveals family
relationships, such as paternity,” do not determine an individual’s propensity for
disease. If the Court were to apply Atlas’s narrow definition of “genetic tests,”
these two examples would go beyond the scope of the statute. Finally, the EEOC
regulations identify tests and procedures which are not genetic tests under GINA.
See 29 C.F.R. 1635.3(f)(3).
None of those tests resemble the PowerPlex 21
analysis or support Defendant’s argument.13 For these reasons, the Court is
unpersuaded that the EEOC’s list of examples weighs in favor of Atlas’s
interpretation.
According to Atlas, the Supplementary Information to the Regulations explicitly provides that
“genetic tests” are only those used to “detect gene variants associated with a specific disease or
condition.” Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed.
Reg. 68,912, at 68,916 (Nov. 9, 2010). However, the term “only” does not appear in this section
of the Supplementary Information. Atlas also erroneously states that the EEOC “has already
determined that no violation of GINA occurred,” referring to the EEOC’s “Dismissal and Notice
of Rights” letters sent to Lowe and Reyolds. (Atlas’s Br. Supp. Mot. Summ. J. at 18, Doc. 45-1;
see Doc. 45-18 and 45-19.) On the contrary, the EEOC found that it was “unable to conclude
that the information obtained establishes violations of the statute.” (Doc. 45-18 at 1.) And the
box checked on both Lowe’s and Reynolds’s Notice states that the document “does not certify
that the respondent is in compliance with the statutes.” (Id.) In any case, the Court is ‘not
required to defer or make reference to the EEOC determination’ in its opinion deciding
summary judgment.” Keaton v. Cobb Cnty., 545 F. Supp. 2d 1275, 1310 (N.D. Ga. 2008) (citing
Kincaid v. Bd. of Trs., 188 F. App’x. 810, 817 (11th Cir. 2006)), aff’d sub nom. Keaton v. Cobb
Cnty., GA, No. 08-11220, 2009 WL 212097 (11th Cir. Jan. 30, 2009).
13
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The Court finds Atlas’s remaining arguments unpersuasive.14 The plain
language of the statute provides that employers may not “request . . . genetic
information with respect to an employee.” 42 U.S.C. § 2000ff-1(b). And as GINA
broadly defines it, “genetic information” includes information about an
individual’s “genetic tests,” such as the PowerPlex 21 test of Lowe’s and
Reynolds’s DNA here. Thus, Atlas’s request for the PowerPlex 21 results is a
violation of GINA.
IV.
CONCLUSION
For the reasons discussed above, the Court finds Atlas liable under 42
U.S.C. § 2000 and GRANTS Plaintiffs Jack Lowe and Dennis Reynolds Partial
Motion for Summary Judgment [Doc. 44] as to liability. The Court DENIES
Defendant Atlas Logistics Group Retail Services (Atlanta), LLC Motion for
Summary Judgment [Doc. 45] as to all claims.
The parties are DIRECTED to file a consolidated proposed pretrial order
on or before May 20, 2015. Plaintiffs SHALL address in their proposed pretrial
order whether they intend to rely on the expert opinion of Professor Paul A.
Lombardo to support their damages claims, and if so, what authority they rely on
for the use of an expert to provide analysis of the legislative history and purpose
Atlas also relies on two cases to support its position. Neither case is helpful to this Court's
analysis. See Bell v. PSS World, No. 3:12–cv–381–J–99MMH–JRK, 2012 WL 6761660 (M.D.
Fla. Dec. 7, 2012) (dismissing GINA claim in which Plaintiff alleged that information about
hyperthyroidism was “genetic information”), report and recommendation adopted by 2013 WL
45826 (Jan. 3, 2013); Poore v. Peterbilt of Briston, L.L.C., 852 F. Supp. 2d. 727, 730 (W.D. Va.
2012) (dismissing GINA claim because Plaintiff’s wife’s multiple sclerosis did not qualify as
“genetic information with respect to the employee” under 42 U.S.C. §2000ff-1).
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of a statute at issue. If necessary, Defendant shall address any objections to
Plaintiffs’ use of Professor Lombardo’s testimony.
All motions in limine are due on or before May 22, 2015. Responses to
motions in limine are due on or before May 28, 2015. The Court will hold a
pretrial conference on June 2, 2015 at 2:30 PM in Courtroom 2308 of the
Richard B. Russell Federal Courthouse, 75 Spring Street, SW, 30303-3309. The
trial on damages in this case will commence with jury selection at 9:30 AM on
June 8, 2015.
IT IS SO ORDERED this 5th day of May, 2015.
_____________________________
Amy Totenberg
United States District Judge
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